Alcoholics Anonymous World Services, Inc.

582 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Alcoholics Anonymous World Services, Inc. and Gerald Evans and Anibal Andujar. Cases 2- CA-21790 and 2-CA-21792 April 22, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT On October 20, 1987, Administrative Law Judge Arthur A. Herman issued the attached decision. The General Counsel filed exceptions and a sup= porting brief, and the Respondent filed an answer- ing brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, 1 and 1 The General Counsel has excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find that *bile the judge made several factual misstatements concerning inconsistencies be- tween the testimony of the General Counsel's witnesses at the hearing and their respective affidavits given to a Board agent, there is insufficient basis to reverse the judge's findings. Specifically, concerning employee Anibal Andujar, the judge found that contrary to Andujar's testimony, his affidavit made no reference to Shipping Department and Mailroom Manager Mike Berg asking him whether he attended union meetings, or where the meetings were held, or who else attended the meetings. Andujar's affidavit is in evidence. It shows that, consistent with his testimony, Andujar stated that Berg some- times asked him if he was going to a union meeting that night. However, as the judge found, Andujar did not mention in his affidavit either that Berg asked him where the meetings were held or who attended. At another point in his decision the judge found that while accusations regarding unlawful interrogation, threats, and intimations of surveillance by Berg were elicited at the hearing from Andujar and employees Gerald Evans and Leo Alexander, "not one of these witnesses included these al- legations in his affidavit to the Board." Concerning Andujar, the judge is in error regarding the one incident of interrogation noted above. The judge also ignored statements in Andujar's affidavit consistent with his testimony that Berg, inter alia, threatened more onerous working condi- tions and castigated lam for being disloyal. However, the judge correctly found that there is nothing in the affidavit with respect to the other inci- dents of alleged interrogation mentioned above, as well as an alleged threat of discharge. In addition, while Andujar testified at the hearing that in the course of a conversation about the Union, Berg said, "Andu- jar, don't listen to the horse's ass, listen to the head," this statement does not appear in Andujar's affidavit. Concerning Evans, it is impossible to determine from the record whether the accusations he made at the hear- mg regarding interrogation, threats, and intimations of surveillance by Berg appeared in Evan's affidavit, because Evans was not challenged on cross-examination regarding such differences between his testimony and his affidavit on these matters and his affidavit is not in evidence. Con- cerning Alexander, the record establishes that Alexander gave two affida- vits to the Regional Office, one during the investigation of a related rep- resentation case and one during the investigation of the instant case. Only the affidavit given in the representation case is before us in this case. The judge's statement is correct to the extent that the affidavit in evidence, the one given during the investigation of the representation case, does not contain any reference to the testimony he gave at the hearing regarding interrogations and threats by Berg. On cross-examination, Alexander was asked about inconsistencies between statements in the unfair labor prac- .conclusions2 and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. nee case affidavit and his testimony on the subject of Berg's questions about attending union meetings. The record does not reveal whether tes- tunony given by Alexander at the hearing regarding threats and other in- terrogations by Berg are mentioned in this unfair labor practice case affi- davit. Thus, as we are unable to confirm the judge's statement that Alex- ander had not included these allegations in the affidavit(s) he gave, we do not rely on this aspect of the judge's credibility analysis. However, given the inconsistencies that do exist and, more importantly, the judge's de- meanor-based crediting of Berg over the General Counsel's witnesses, we adopt the judge's credibility findings. 2 The General Counsel excepts to the judge's failure to discuss or pass on the complaint allegation that the Respondent violated Sec. 8(a)(1) and (3) of the Act by imposing more onerous and rigorous terms and condi- tions of employment on employees after the advent of the Union by more strictly enforcing its attendance policy of "red-circling" the late arrival of employees on its timesheets. We have reviewed the evidence, including the tnnesheets of the shipping and receiving department and mailroom, and find the evidence insufficient to show that there was in fact any sig- nificant difference in the Respondent's enforcement of its attendance policy. Accordingly, we dismiss this complaint allegation. Gwynne A. Wilcox, Esq., for the General Counsel. Arthur R. Kaufman, Esq. (Kaufman, Franlc, Schneider <I Rosensweig; P.C.), for the Respondent. DECISION STATEMENT OF THE CASE ARTHUR A. HERMAN, Administrative Law Judge. On July 21, 1986, Gerald Evans, an individual, filed a charge against Alcoholics Anonymous World Services, Inc. (Re- spondent) in C'Ase 2-CA-21790, and on July 22, 1986, Anibal Andujar, an individual, filed a charge against Re- spondent in Case 2-CA-21792. Both charges alleged wrongful discharge. On September 30, 1986, the Region- al Director for Region 2 issued an order further consoli- dating cases, amended consolidated complaint, and notice of hearing, which combined the two cases cited above with two other cases that had been previously filed in- volving one Robert Hughie, an individual, who was also employed by Respondent.' In addition to the allegations regarding Hughie, the consolidated complaint alleged that Respondent discharged Evans and Andujar because of their support for Warehouse and Production Employ- ees Union, Local 210, AFL-CIO, OPEIU (Local 210); numerous specific 8(a)(1) violations were also alleged. Respondent responded denying the pertinent allegations. On October 24, 1986, a second amended consolidated complaint and notice of hearing issued, which added a further allegation of Section 8(a)(1) involving a warning letter to Andujar. This too was denied by Respondent. The entire case was tried before me on November 24- 26, and December 1-3, 1986, at New York, New York. 1 The two cases involving Huglaie are Cases 2-CA-21568-1 and 2- CA-2l568--2. 288 NLRB No. 71 ALCOHOLICS ANONYMOUS WORLD SERVICES 583 On August 12, 1987, I was advised by all interested par- ties that Hughie wished to settle his cases with Respond- ent and withdraw his charges, and that no party opposed the settlement. Whereupon I signed an order approving the non-Board settlement for Hughie and I severed Hughie's Cases 2-CA-21568-1 and 2-CA-21568-2, pre- serving, however, whatever evidence I deemed useful for reaching my conclusions regarding Evans and Andu- jar, and the 8(aX1) allegations. And, on August 20, 1987, I dismissed the complaints in Cases 2-CA-21568-1 and 2-CA-21568-2. Thus, on the record as its pertains to Evans and Andujar and the 8(a)(1) allegations, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by counsel for the General Counsel and Respondent, I make the follow- ing FINDINGS OF FACT I. JURISDICTION Respondent, a New York not-for-profit corporation, is engaged in the sale and distribution of books, pamphlets, and other literature relating to alcoholism recovery. An- nually, Respondent derives gross revenues in excess of $500,000 and, annually, Respondent ships goods and ma- terials valued in excess of $50,000 directly to points out- side the State of New York. Based on these facts, which Respondent admits, I find that Respondent is, and has been at all times material, an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION The consolidated complaint alleges, Respondent admits, and I find that Local 210 is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Events Involving Robert.Hughie, Local 210's Organizing Campaign, and the Representation Proceeding Respondent's shipping and receiving department and its mail department are located on the sixth floor of Re- spondent's premises. In January 1976, Robert Hughie was hired by Respondent as a clerk in its shipping and receiving department. In 1977, Hughie was promoted to the position of supervisor of the shipping and receiving department. As supervisor, Hughie ordered all supplies from vendors, monitored the workload, made recommen- dations to his supervisor, Shirley Grant, the personnel di- rector, on hiring and working overtime, kept the time- sheets, and took part in management discussions involv- ing employees' raises and disciplining of employees. 2 In 1982 his job function changed in that he no longer or- dered supplies from vendors but now notified other office personnel of the stock on hand, and they did the 2 Hughie had his own office in the department, and on the door of his office was a sign, "Robert Hughie, Manager, Shipping and Receiving De- partment." ordering. However, in all other respects his job remained the same. In April 1985, Hughie was asked to attend a manage- ment meeting. Shirley Grant—personnel manager, Ed Gordon—director of finance, John Bragg—general man- ager, and Frank Smith—supervisor of the mailroom, were present. Hughie and Smith were told that Mike Berg was being hired as manager of both the shipping department and mailroom; that Berg was to start the fol- lowing week; and that Hughie and Smith would be re- sponsible to Berg. According to Hughie, with the hiring of Berg, Hughie no longer did the receiving nor the or- dering of supplies, nor the taking of inventory; and he had no input on hiring or raises. Hughie no longer re- ported to Shirley Grant; he reported to Berg. Needless to say, Hughie was very unhappy with the hiring of Berg because in fact he had been shunted aside to make room for a newly hired employee to take his job. The record establishes that sometime in October 1985 Hughie, on behalf of himself and several other employ- ees, contacted Local 210 by telephone and expressed their interest in joining a union. In response, Local 210 sent authorization cards to Hughie. On November 25, 1985, Dominick Formisano, Local 210's president, visited Hughie on the job and gave him more cards to distribute to the employees. On December 2, 1985, a meeting of Respondent's shipping department employees and mail- room employees was held at Local 210's office. Accord- ing to Hughie, there were about nine employees in the shipping department and five in the mailroom, and almost all attended the meeting and signed authorization cards. On December 4, 1985, Local 210 sent a mailgram to Respondent requesting recognition of the employees in those two departments. On December 9, 1985, Local 210 filed a petition with the Board seeking to represent a unit of those employees. Inasmuch as Respondent questioned the supervisory status of Hughie and the appropriateness of the unit, a 2-day hearing was held at Region 2, and Hughie testified at the hearing. On January 23, 1986, the Regional Director for Region 2 issued his Decision and Direction of Election in which he found the unit sought to be appropriate, and directed an election therein. He also found that Hughie was no longer a supervisor and that therefore he was eligible to vote in the election. On February 27, 1986, an election was held but the ballots were impounded because of an appeal by the Employer. The Board, by Order on September 17, 1986, affirmed the Regional Director's decision that Hughie was not a supervisor; but, contrary to the Regional Director, the Board found that only an overall unit of all the Employ- er's clerical employees constituted an appropriate unit and it, therefore, vacated the election. Inasmuch as the unit found appropriate was much larger than the one sought, Local 210 was given additional time to submit an adequate and sufficient showing of interest. The instant record is void of any further reference to the representa- tion proceeding, and so, I assume that no further show- ing of interest was presented by Local 210 and no elec- tion took place thereafter. 584 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD B. Anibal Andujar Andujar was hired by Respondent on September 30, 1985, as a shipping clerk in the shipping department. Mi- chael Berg, Respondent's manager of the shipping, re- ceiving, and mail department, had supervised Andujar at his previous job, and had persuaded Andujar to leave it to come to work for Respondent. Andujar testified that he first heard about a union in November-December 1985, that he signed an authoriza- tion card eni December 4, 1985, and that he, along with practically all the employees in shipping and mailroom, attended about two or three meetings at the Union's office. Andujar stated that prior to his signing a union card, Berg asked him on a few occasions whether he knew about any union meetings, where the meetings were being held, and whether employees attended the meetings. To all of this Andujar responded that he did not know. Andujar further stated that about 2 weeks after he signed the union card Berg called him into his office and asked him if he had signed a card. Andujar re- sponded affirmatively and asked Berg if he thought it was wrong. 3 Berg told him, "yes," because he had brought Andujar in, that Andujar owed him for the job, and that therefore Andujar should be on Berg's side. Andujar testified that shortly after he had signed his union card Berg began calling him "Traitor" or "Bene- dict Arnold," and making jokes about Andujar's Puerto Rican nationality. Berg kept this up, doing this repeated- ly in front of other employees, until Andujar angrily let him know that he resented it. On that same day, which was before the election, Berg told other employees in Andujar's presence that Andujar would be the first em- ployee to go. Also prior to the election, according to Andujar, Berg tried to convince Andujar to vote against the Union, telling him that if the Union won the election the employees would no longer be able to play their radio on the job, they would not get personal telephone calls, and carfare money they previously received when they worked overtime would no longer be forthcoming. On March 3, 1986, Berg gave Andujar a warning letter that referred to Andujar's use of vulgar and ob- scene language in the shipping department while employ- ees from other departments or visitors were present. Berg stated in the letter that on February 28, 1986, he overheard Andujar use profanity while a tour of visitors was going through the shipping department. The letter warns Andujar that a repeat of such action will result in his discharge. 4 Andujar testified that all the employees, including Berg, used curse words from time to time, and that he had never been warned before or spoken to about it. About 3 weeks later, according to Andujar, Berg called him into his office, thanked him for not curs- ing, and said, "Let's forget it and let's work together now." Robert Cubelo, Respondent's production manager and Berg's supervisor, testified that in the latter part of March or early April 1986, while he and two sales repre- sentatives from a company doing work for Respondent 3 On cross-examination, Andujar stated that he was not asked by Berg, but volunteered the information to Berg that he had signed a union card. 4 See G.C. Exh. 9. were in the shipping department, Cubelo heard Aiidujar use disgusting and profane language in a loud voice. Cubelo apologized to the representatives and reported the incident to Berg. On April 22, 1986, Andujar had an argument with Frank Giorgio, a unit leader in the shipping department. According to Andujar, Berg had given Andujar a special order to do when Giorgio asked Andujar to help him with some boxes. Andujar refused, telling Giorgio that he had to complete the job for Berg. Again, according to Andujar, Giorgio started to scream, "Are you refusing an order?" So Andujar screamed back, "Yes, of course, I'm refusing an order." Berg witnessed the incident and he called Giorgio into his office. After Giorgio left his office, Berg called Andujar in and asked Andujar for an explanation. Berg than told Andujar to calm down, go home, and report to work the next day. Andujar protest- ed but Berg insisted. As Andujar was leaving, Giorgio told him he was sorry and asked Andujar to help him put some boxes on the elevator. Andujar helped and left. The next day, Cubelo called Andujar into his office; Berg was present. Cubelo gave Andujar his final pay- check and a letter notifying Andujar that he was termi- nated due to insubordination. 6 Cubelo testified that at no time was he aware of Andujar's union activity. On cross-examination of Andujar, counsel for Re- spondent elicited the fact that nowhere in Andujar's affi- davit, given to a Board agent, does Andujar make refer- ence to Berg asking him whether he attended union meetings, or where the meetings were held, or who else attended the meetings. Also, no mention is made in An- dujar's affidavit about Berg's alleged threat to discharge Andujar'S before any other employee.6 Berg testified that he first became aware of the fact that the employees were attempting to organize when he heard conversations among the employees sometime in October-November 1985. Berg stated that he had a con- versation with Andujar in his office in November 1985, in which Andujar asked Berg what his feelings were re- garding the Union. Berg claimed he was noncommital. In December 1985 or January 1986, Berg held a meeting of the employees at which he told them of his prior ex- perience with a union. He related that under a union contract employees and management had to adhere to certain rules—breaks and lunch periods were fixed; no radios were allowed; timeclock, rather than timesheets, were used; excessive absenteeism could result in termina- tion; a dress code existed, etc. Berg admitted that on only one occasion, while Andujar stood next to Hughie on the floor of the shipping department, and Hughie put his arm around Andujar saying, "This is my boy." Berg walked by and said, "A Benedict Arnold." Berg stated that early in February 1986 he spoke to Andujar about the latter's use of profane and obscene language, and asked him to curb it. However, in the latter part of February, while a tour of visitors was being conducted through the department, Andujar used vile and disgusting language, loud enough for the visitors to 5 Giorgio was not called as a witness by either party. 6 Berg denies making such a threat. ALCOHOLICS ANONYMOUS WORLD SERVICES 585 ^ hear it. This was the incident that prompted the issuance of the warning letter to Andujar on March 3, 1986. As stated above, Berg witnessed the Andujar-Giorgio dispute on April 22, 1986. He testified as follows: A. I was in the shipping department getting a drink of water. Frank Giorgio was standing ap- proximately ten feet to my right at his position in the department. The water fountain is basically right behind him and I heard him say, "Anibal, could you please give me a hand with these boxes? They have to be moved into storage." And Anibal said, "I'm not going to do it" in a loud voice. At that point, I—I wasn't far away from Frank, so I just stood there to hear what was going on. Anibal again was asked by Frank to please help him with the cartons. Anibal said again that I'm not. Frank said, "Are you refusing to do an instruction?" Anibal said, "You can go f—k yourself and I'm not going to do anything you say" and proceeded to walk to his area where he was working. At that point, I walked over to Frank Giorgio and T said to him, "Is there a problem, Frank?" He hesitated for a second and said, "Yes, there is." I said, "Would you like to make a report?", and he said yes, he would. He proceeded into my office where he handed me a document of the actions of Anibal Andujar and his insubordination to perform a required func- tion of Frank Giorgio. Q. And what did you do? A. At that point, I made a recommendation to terminate Anibal's employment, based on insubordi- nation. The next day Andujar was terminated. C. Gerald Evans Evans came to work for Respondent as a mail clerk on November 14, 1985. Evans, like Andujar, attended most of the union meetings that were held at the union office, and he signed a union authorization card on December 2, 1985, at the first union meeting. Evans' starting salary was $200 per week. On January 1, 1986, he was given a raise to $213 per week and Berg promised him another raise in June. However, according to Evans, Berg reneged on his promise and told Evans in January that no one was getting a raise because the Union was coming in. Evans testified that Berg warned him on several occa- sions for having conversations with Hughie in the ship- ping department. In fact, the last such warning resulted in an official reprimand dated April 29, 1986, which threatened future action if Evans did not correct the situ- ation.7 Evans related an incident that he overheard in late January or early February 1986, in which he heard Berg call Andujar a traitor and threatened Andujar with dis- charge. 7 G.C. Exh 13 Evans further testified that about 2 weeks before the election Berg called Evans into his office and questioned him regarding what benefits he thought the Union could get for him. After Evans responded, Berg told him that Respondent was watching the employees very carefully. About a week later when Berg questioned Evans about what had transpired at a recent union meeting and Evans did not respond, Berg told Evans that Respondent would be very strict if a union got in. Evans stated that on Friday, July 18, 1986, he reported for work at 8:55 a.m. but did not remember to sign in. ' He reminded himself about 11 a.m. and then signed in 9 a.m. About 2 p.m. while Evans was doing routine tasks, and while he was sitting to rest a bad back, 8 Cubelo and Gordon entered the shipping department. According to Evans, the following occurred: I told Ronnie Shelton that they were there because he was like sitting down doing nothing. Then he got up and started moving. My back started to bother me again and I went into—it was Mike's old office that he had moved out where we kept our labels and stuff. I was just looking to see what amount of labels we had on hand and my back was bothering me and I sat down in a chair. I sat there a few minutes and then Bob Cubelo and Ed Gordon came in, turn on the lights because the light was out and the door was open. They turned on the light and they started looking at the labels, the ones I had just finished reviewing. I stood up and Bob Cubelo told me to sit back down and they left. Later on during that day my back kept nagging me and bothering me and it was hurting really bad. I wanted to go home Mike wasn't there and Frank Smith wasn't there. So I telephone Bob Cubelo's ex- tension and I didn't get an answer. Nobody an- swered the phone.° Then I told Ronnie Shelton [a fellow employee]— he was the next man I knew to tell in my depart- ment that I wanted to go home. He said he didn't care. Then I thought I'd double check and I went to the other side of the department. I went to the shipping department and I told Aubrey Perera [pho- netic] and other employees that I needed to go home, my back was hurting. No one responded. Evans testified that neither Berg nor Frank Smith, the unit leader, came to work that day, and that he left at 3:40 p.m. On Monday, July 21, 1986, Evans was called into Cubelo's office, given a termination letter," and 8 Evans testified that he had hurt his back on June 7, 1986, and was out of work for about a week. He produced two doctor's notes recom- mending light duty when he returned to work. 9 On cross-examination, Respondent got Evans to admit that even though Evans knew Cubelo's office was on the eighth floor, he made no attempt to go to the eighth floor to notify someone that he was leaving the building. " G.C. Exh. 14. 586 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD told to leave. The letter advised Evans that he was being terminated because, despite prior warnings, he was found sleeping on the job and general poor performance. On cross-examination, Evans admitted that he received a notice from Respondent in March 1986 pointing up the fact that he had an excessive amount of days absent from the job, and threatening further action if his attendance record did not improve." Evans also admitted that in April 1986 he received a warning notice for sleeping on the job, but that it was his contention that he was on a break. In addition, Evans received an oral warning from Berg for being on the telephone eight times in 1 day. Cubelo testified that on July 18, 1986, because neither Berg nor Smith came to work, he, Cubelo, had to unlock the mailroom at 9 a.m. to let the employees in to work. He noticed that neither Evans nor Shelton were present, and that neither showed up when he left the department at 9:25 a.m. Cubelo further stated that at 1:40 p.m. that same day he and Gordon had occasion to go to the mail- room where they found Evans asleep in a small office.12 Cubelo inquired as to Evans' lunch hour and found out that Evans went to lunch between 12 and 1 p.m. And so, Cubelo went back to the mailroom about 3:30 p.m. to speak to Evans, but Evans was gone for the day. Cubelo came down again to the mailroom at 4:10 p.m. but Evans was not there and Shelton was leaving. Cubelo then checked the timesheet and learned that although Evans was not on the job at 9 a.m., he had signed in at 9 a.m., and had not signed out at all. Also, Cubelo noticed that although Shelton had not been present at 9 a.m., the timesheet showed him signed in at 9 a.m., and despite the fact that Cubelo saw Shelton leave at 4:10 p.m., the time- sheet had him signed out at 4:45 p.m. Cubelo decided to terminate Evans and reprimand Shelton. Cubelo testified that at no time was he aware of Evans being involved in any union activity. Berg testified that he never had a one-on-one conver- sation with Evans regarding the Union; that he never called Evans into his office for the express purpose of discussing the Union; that he never asked Evans what he thought the Union could do for him or what happened at union meetings; and that he never told Evans that Re- spondent had the employees in the mailroom and ship- ping department under a microscope. Berg recalled an incident in which he was walking through the mailroom and noticed the employees standing around and talking when they should be working. Whereupon, he casually remarked, "What's this, guys, a union meeting? Let's get back to work," and continued on his way. Berg states that that was the only time he ever used the term, "union meeting." Berg further testified that at the time he handed Evans a warning notice regarding absenteeism (see fn. 11, supra), he discussed sick time with him, but at no other time except at the general meeting discussed above. Berg recalled Hughie showing him an article in "The Amsterdam News" regard Hughie's demotion, and Hughie asked Berg what he thought about it. Berg re- sponded that he was impressed to see it in that newspa- per; that he would expect to see it in "The Enquirer next to the article on the woman that gave birth to the three headed boy." Berg denies ever hearing Evans comment on the article, and does not remember if Evans was even present. Leo Alexander, a former employee of Respondent, was called to testify by the General Counsel. He stated that he had been employed as a mail clerk from Febru- ary 1979 to March 1986 when he resigned. He testified that in November 1985, he and the other employees asked Hughie to contact the Union; that he attended three or four union meetings, as did most of the employ- ees; and that he signed a union card. Alexander claimed that Berg called him into his office in January 1986 and inquired of him why he joined the Union. Contrary to Berg's statement that the Union was no good, Alexander told Berg that he thought the Union could help the em- ployees. That was the extent of the conversation as Alex- ander could recall. Alexander further testified that on three or four occasions between December 1985 and March 1986, Berg would inquire of the employees if they were going to a union meeting or talking about a union meeting. Also, Alexander stated that right before the election Berg told him that if the Union came in the Re- spondent would close and move and not hire the same employees. Berg is also alleged to have told Alexander just before the election that if the Union comes in, he, Berg, would have to be very strict with the employees. Alexander further stated that just before the election he overheard Berg tell Evans, when the latter asked about his raise, "let the Union come in let the union give it to you." Regarding Hughie, Alexander testified that back in September 1985, Berg told Alexander to keep away from Hughie because he is a troublemaker, and to discuss his business with Berg. In a later conversation in the same vein, Berg is alleged to have told Alexander, regarding Hughie, "if you need help come talk to the horse's head not the horse's rear end." On cross-examination, Respondent elicited the fact that Alexander had been included in Andujar's unfair labor practice charge against Respondent, but that Alexander's charge had been dismissed by the Region. Also, on cross-examination, Alexander admitted that Berg's inter- rogation whether the employees was going to a union meeting, occurred when the employees were either leav- ing for the day, on a break, or standing around talking. Alexander also admitted, on cross-examination, that he got a $15-wage increase in January 1986. Further, there is no mention in Alexander's affidavit to the Labor Board about Berg's alleged remark telling Alexander to "talk to the horse's head." In addition, no reference is made in the affidavit as to Berg interrogating employees regarding their union activity, and no mention is made about Berg's alleged threat to close the premises and move if the Union gets in, or be more strict with the em- ployees.13 Berg testified that from time to time Alexander would come into his office and they would "shoot the breeze." Berg denies ever askmg Alexander if he joined the " R. Exh 18. 12 Gordon confirms this testimony. 12 R Each. 21. , ALCOHOLICS ANONYMOUS WORLD SERVICES 587 Union, but states that Alexander told him he joined be- cause he was looking for job security and a better wage. Berg said that he heard rumors from Alexander and other employees that Respondent was moving, and so he checked it out with his superiors. On being told that the rumor was not true, Berg related the information to the employees. Berg denies telling Alexander that there would be strict enforcement of rules if the Union came in. D. The 8(a)(1) Allegations Interspersed throughout the evidence presented above with regard to Andujar and Evans is all the 8(a)(1) con- duct alleged to have been engaged in by Respondent. Specifically, the General Counsel alleges the following: 1.Berg instructed both Evans and Alexander not to associate with Hughie. 2. Berg interrogated employees about their union activity. 3. Berg threatened employees with the loss of wage increases, with more onerous working condi- tions, and with a shutdown and move of Respond- ent's premises if they continued to support the Union. 4. Berg intimated that the employees' union ac- tivities were under surveillance. 5. Berg castigated Andujar for being disloyal and threatened him with discharge. Analysis and Conclusions The consolidated complaint in this proceeding raises two areas of concern. The first relates to the preelection period and focuses on the alleged independent violations of Section 8(a)(1) of the Act, through which Respondent allegedly sought to induce its employees to refrain from supporting the Union. The second relates to the postelec- tion period with the focal point being the claim that Re- spondent violated Section 8(a)(3) and (1) of the Act by discharging Evans and Andujar in reprisal for their par- ticipation in union activity. Before responding to either of these two areas of con- cern, I believe it is essential that I draw some conclu- sions from the uncontroverted evidence before me. The background of this case leaves no doubt in my mind that Robert Hughie was the guiding force in attempting to bring the Union onto the Respondent's premises, and that it was Hughie's animosity toward Berg that created the dissension among the employees. Hughie had been in charge of the shipping and receiving department for almost 10 years when, out-of-the-blue, so to speak, Berg was hired by Respondent, and Hughie in his own mind was relegated to an underlying position. I say in his own mind because actually many of the duties he had previ- ously done were still his to do, but he chose rather to abdicate his responsibilities in his anger toward Berg. And so, from April to October 1985, Hughie's resent- ment for Berg grew worse, many verbal altercations took place between the two, and, eventually, Hughie sought out the Union. He was the one who first contact- ed the Union; he was the one who obtained the Union's authorization cards; and he was the one who the union president came to see on Respondent's premises. The evi- dence further shows that after holding three or four meetings at the Union's office, attended by practically all the unit employees, all of whom signed cards, the Union filed its petition and a Board hearing was held at which Hughie testified on behalf of the Union. No other unit employee is ever mentioned by name to show that he was an ardent, active union supporter. As Hughie and the parties to this proceeding chose to settle whatever claims Hughie had, I am left to determine whether Re- spondent, minus Hughie's assertions, violated the Act. Looking first to the discharges of Evans and Andujar, I am faced with the question of whether the General Counsel has presented sufficient evidence to find that Respondent has violated the Act. The keystone of prov- ing a violation requires the finding of an unlawful motive. And usually, the essential elements needed to make such a finding are knowledge on the part of Re- spondent that the employees engaged in union activity, and that the discharges occurred because of that activity. Because only discriminatory conduct, which is motivated by union animus, violates the Act, it is essential that the General Counsel prove Respondent's unlawful motiva- tion in order to fmd a violation of the Act. As always, an employer has the right to discharge employees for good cause, which is related to the maintenance of order and efficiency on his premises. As stated in Wright Line," when employees are discharged for both legitimate and illegitimate reasons, the General Counsel must make a prima facie showing that the employees' protected activi- ty was a "motivating factor" in the employer's decision. The burden then shifts to the employer to show that the same discharge action would have taken place even in the absence of the protected activity. It is my belief that such was the case here. In the instant proceeding, the General Counsel has at- tempted to show that Respondent's knowledge of Andu- jar's union activity so angered and disturbed Respondent that the latter chose to discharge Andujar because of it. The General Counsel contends that because Berg sought out Andujar to get him to work for Respondent, Berg expected an allegiance from Andujar to him rather than to the Union. On the other hand, Berg, while practically admitting that he knew that Andujar signed an authori- zation card for the Union, claims that Andujar's dis- charge was brought about by a combination of Andujar's insubordination and use of vulgar language. This is cor- roborated by the testimony of Cubelo. I credit Berg and Cubelo. In the first place, because of the fact that Berg denies it and it does not appear in Andujar's affidavit, I do not credit Andujar when he says that Berg interrogat- ed him regarding whether he attended union meetings, or where the meetings were held, or who else attended the meetings. At the most, Berg's knowledge that Andu- jar signed a union card comes from the fact that Andujar volunteered that information to Berg. In addition, and for the same reason, I do not credit Andujar when he ac- cused Berg of threatening to discharge him before any 14 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cu-. 1981), cert. denied 455 U S. 989 (1982). 588 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD other employee. As for the accusation that Berg called Andujar a traitor, and Berg acknowledging that he did on one occasion, I attribute that remark to the fact that Andujar was standing next to Hughie, Berg's arch enemy, with Hughie's arm around Andujar, and I find that that remark was made at the time, not because An- dujar had signed a card for the Union, but because Berg viewed Andujar as having given up his allegiance to him and switched it to Hughie. Contrary to the General Counsel's contentions, there is the uncontroverted testimony of both Berg and Cubelo, which I credit, pointing up Andujar's propensity to use vulgar language on the job. Such actions by Andujar drew a stern rebuke from Berg by way of a warning letter in March 1986, and Cubelo testified to a later inci- dent in the same vein. Andujar's lame excuse was that all the employees from time to time used curse words. Then, the climax occurred on April 22, 1986, when Andujar refused to perform a duty asked of him by Giorgio. Here, I credit Berg who witnessed the incident and testified as I quoted above. Andujar's language was atrocious and his refusal to perform an assigned task was inexcusable. Under the circumstances, I do not find, as the General Counsel argues, that the facts and inferences to be drawn show that the underlying basis for Andujar's discharge was Respondent's hostility to Andujar's union activities. Rather, I find that Respondent discharged Andujar be- cause of his insubordination and his use of vulgar and atrocious language after being warned. In the case of Evans, the evidence is even more dam- aging to the General Counsel's case. The General Coun- sel seeks to link a series of unrelated incidents involving Hughie, with a minimal amount of union activity on Evans' part, in order to come up with a discriminatory discharge based on union activity. In fact, Evans' con- versations with Hughie greatly annoyed Berg, not be- cause of a fear that they were secretly engaged in dis- cussing union affairs, but because Berg was so opposed to Hughie and his action toward Berg, that he did not want any of the employees to have anything to do with him Hughie had become a thorn in Berg's side, and Berg was at a loss how to handle it. Therefore, any act of friendship by any employee toward Hughie was an act of disloyalty against Berg, and that is the way Berg saw it." It had nothing to do with Evans' union activity of which there was very little. True, he signed a card; so did all the other employees. True, he attended union meetings; so did all the other employees. That was the full extent of Evans' union activities. The only interroga- tion of Evans by Berg that I credit is Berg's questioning of Evans regarding his conversations with Hughie. Cred- iting Berg, I do not believe that Berg questioned Evans regarding his union activity. In addition to annoying Berg by his conversations with Hughie, Evans became quite lax on the job. In March 1986, Evans was given a verbal warning by Berg for sleeping on company time, taking unauthorized 15 It was these actions by Evans that prompted Berg to issue both verbal and written warnings to Evans breaks, and excessively using the phone for personal On July 18, 1986, Evans came to work late, was caught sleeping on company time, and left early without notifying any superior. These acts resulted in his dis- charge. I fmd that the action taken by Respondent was completely justified. It was not done for discriminatory reasons nor was it a pretext to conceal a proscribed motive. Evans' minimal union activity had nothing to do with his discharge. While Evans may have been a satis- factory employee during 1985, which was sufficient to warrant him a raise in January 1986, from that point on he allowed himself to become lax and inefficient. The record shows that Respondent issued both verbal and written warnings to Evans, and finally had no alternative but to discharge him Accordingly, I fmd that Respondent was justified in discharging Andujar and Evans for engaging in conduct unprotected by the Act, and not because of their union activity as alleged in the amended consolidated com- plaints. I fmd that Respondent would have acted in the same manner even in the absence of the two employees' union activity, and therefore I shall dismiss those allega- tions. The 8(a)(1) Allegations The General Counsel contends that Berg instructed Evans and Alexander not to associate with Hughie, and that that instruction constituted a violation of the Act. The question, however, is whether that instruction was to prevent the employees from engaging in protected union activity or to prevent them from socializing on company time. As I have stated above, I find that Berg's admonishments to the employees were based solely on his desire to isolate Hughie, not because Hughie was the principal union activist, but because of Berg's personal feud with Hughie. Moreover, the General Counsel of- fered no evidence to show a connection between Berg's remarks to the employees and Hughie's union activities. Under the circumstances, I do not find that Berg's con- duct constituted a violation of Section 8(a)(1) of the Act. Berg was alleged to have interrogated and threatened employees regarding their union activities, and to have intimated that their union activities were under surveil- lance. These accusations were elicited from Andujar, Evans, and Alexander, and yet not one of these witnesses included these allegations in his affidavit to the Board. On the other hand, Berg emphatically denied the allega- tions. In judging the credibility of the witnesses before me, I must say that Berg impressed me as a frank and honest witness. When questioned about his calling Andu- jar a traitor, Berg readily admitted that he did that on the one occasion when he saw Hughie standing with his arm around Andujar. Berg also admitted that one time when the employees were leaving for the day he face- tiously asked if they were going to a union meeting. However, this did not constitute interrogation within the meaning of the Act. Respondent was fully aware of the 16 These wariungs were memorialized by memo from Berg to Grant. See R. Exh 28, dated March 13, 1986 ALCOHOLICS ANONYMOUS WORLD SERVICES 589 existing union activity in the department, but I do be- lieve that at no time did anyone from management ex- press a direct animus toward any of the employees. At most, Berg's remark regarding a union meeting was merely a rhetorical question. In my overall view of the situation, I fmd that Berg did not violate the Act as al- leged by the General Counsel. One final 8(a)(1) allegation accuses Berg of castigating Anclujar for being disloyal and threatening to discharge him because of it. Having credited Berg, I find . that Berg did on one occasion, as stated above, castigate Andujar. But I find that the rebuke to Andujar had nothing to do with his union activity. He remonstrated with Andujar because of the latter's expression of friendship for Hug,hie. I find that he never threatened ,Andujar with discharge because of it. Under all the circumstances in this case, I shall dismiss the amended consolidated complaint in its entirety. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce as defined in Section 2(6) and (7) of the Act. 2. Respondent has not engaged in any violation of Sec- tion 8(a)(1) and (3) of the Act as alleged in the amended consolidated complaint. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed17 ORDER It is recommended that the amended consolidated complaint be dismissed in its entirety. 17 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses.